240 U.S.

122
36 S.Ct. 277
60 L.Ed. 560

JOHN F DODGE and Horace E. Dodge, Appts.,

v.
JAMES J. BRADY, Collector of Internal Revenue.
No. 213.
Argued October 14 and 15, 1915.
Decided February 21, 1916.

Messrs. William D. Guthrie and Fred A. Baker for appellants.

[Argument of Counsel from page 123 intentionally omitted]
Solicitor General Davis and Assistant Attorney General Wallace for
appellee.
Mr. Chief Justice White delivered the opinion of the court:

The appellants are the same persons who sued in Dodge v. Osborn, just decided
[240 U. S. 118, 60 L. ed. , 36 Sup. Ct. Rep. 275]. After the dismissal of
that suit by the supreme court of the District of Columbia for want of
jurisdiction, the parties, on June 10, 1914, filed their bill in the court below
against the collector of internal revenue, to enjoin the collection of the surtaxes
assessed against them, which were disputed in the previous case on
substantially the same grounds alleged in the complaint in that case. The bill
alleged, however, that plaintiffs had filed with the collector 'an appeal or claim
for the remission and abatement of the surtaxes' because of the
unconstitutionality of the statute imposing them, and that the Commissioner of
Internal Revenue to whom the claim had been forwarded by the collector had
such protest under advisement. Upon the filing of the bill the plaintiffs moved
for a preliminary injunction which was denied July 29, 1914. On the same day,
by leave of court, a supplemental bill was filed which alleged that since the
filing of the original bill the Commissioner of Internal Revenue had ruled
adversely upon plaintiffs' protest, and that thereupon they had paid the surtaxes
to the collector under protest, and they prayed a recovery of the amount paid to

the collector and for the other relief asked in the original bill. The defendant
moved to dismiss the bill for want of jurisdiction because the suit was brought
to enjoin the collection of a tax, contrary to the provisions of 3224, Revised
Statutes (Comp. Stat. 1913, 5947), and for want of equity because the income
tax law was constitutional and valid. The court sustained the motion on the
latter ground and dismissed the bill on the merits, and the case is here on direct
appeal because of the constitutional questions.
2

The government insists that the court below was without jurisdiction to decide
the merits, and we come first to that question. It is apparent if the original bill
alone is taken into view that the suit was brought to enjoin the collection of a
tax, and the court was without jurisdiction for the reasons stated in the previous
case. And it is argued by the government that there was no jurisdiction under
the supplemental bill, since it fails to allege that an appeal was taken to the
Commissioner of Internal Revenue after the payment of the taxes, and that he
refused to refund them, and therefore fails to allege a compliance with the
conditions imposed by 3220 and 3226 of the Revised Statutes (Comp. Stat.
1913, 5944, 5949), as prerequisites to a suit to recover taxes wrongfully
collected. But, broadly considering the whole situation, and taking into view
the peculiar facts of the case, the protest to the Commissioner, and his exertion
of authority over it, and his adverse ruling upon the merits of the tax, thereby
passing upon every question which he would be called upon to decide on an
appeal for a refunding of the taxes paid, we think that this case is so
exceptional in character as not to justify us in holding that reversible error was
committed by the court below in passing upon the case upon its merits, thus
putting an end to further absolutely useless and unnecessary controversy. We
say useless and unnecessary because on the merits all the contentions urged by
the appellants concerning the unconstitutionality of the law and of the surtaxes
which it imposes have been considered and adversely disposed of in Brushaber
v. Union P. R. Co. 240 U. S. 1, 60 L. ed. , 36 Sup. Ct. Rep. 236.

Judgment affirmed.

Mr. Justice McReynolds took no part in the consideration or decision of this

case.